Response to Government Open Standards consultation

We welcome the opportunity to respond to this Open Standards consultation. In this short submission we set out our support for a long term commitment from the Government to unencumbered, royalty-free (RF) open standards.

We believe that this will ultimately promote competition and innovation in the markets of related providers, prevent public bodies or citizens befalling vendor or de facto standard 'lock-in', reduce associated costs, and promote the broadest possible use and reuse of government information.

The principle metrics against which the government's approach should be evaluated should be competition, value for money and governance (which would include the public's use of public information and engagement with public bodies).

A commitment to truly open standards will improve access and reuse of government information and reduce government dependency on particular providers. Over time this should reduce the costs of procuring ICT in government, help boost the market for software by driving a wider adoption of open standard formats, and ensure long term accessibility to public information.

In a broader context, a commitment to truly open standards should be seen an important component of the open government agenda, helping to ensure the widest possible access to and use of public information.

So we see this consultation representing a chance for the government to commit to a policy that will encourage innovation, choice and engagement with public services.

Open standards are a vital part of open government

We also wish to note that this policy also represents an important opportunity to bring broader coherence to the ongoing open government agenda. The Government plans to publish more 'public data' than before, with plans to promote transparency and improve engagement in and innovation around public services. This is part of a concerted drive towards more 'open government'.

An important part of that is ensuring that the information released is in a format that is usable as widely as possible.

Open Standards are critical to interoperability and freedom of choice in technology. So committing to open standards means that information the Government releases to the public is not locked in to a particular platform, can be used or read more widely, and will likely be easier to archive and read in the future.

Chapter 1: Criteria for open standards

Question 1. How does this definition of open standard compare to your view of what makes a standard 'open'?

We see open standards as those that may be implemented (and the implementation distributed) without license fee or similar payment, nor requirement for binding legal agreement. free from legal or technical clauses that limit its utilisation by any party or in any business model.

The definition of an open standard in the consultation is reasonably good. We believe the definition of a truly open standard is one which adheres to royalty free and non-discriminatory principles. Royalty-free, non-discriminatory terms lead to standards that are unencumbered by restrictions that can undermine the benefits of openness.

We do have concerns about the statement “patents may be covered by a non-discriminatory promise of non-assertion” may be too weak. We suggest that the definition read:

“owners of patents essential to implementation have agreed to licence these on a royalty free and non- discriminatory basis for implementing the standard and using or interfacing with other implementations which have adopted that same standard and have agreed to a non-discriminatory promise of non-assertion.”

We suggest this would help remove the opportunity for reassertion of restrictions.

We also note that the term “publicly available at zero or low cost". Even "low" cost will be a problem. We suggest that the words 'low cost' be taken out.

8. How could adopting (Fair) Reasonable and Non Discriminatory ((F)RAND) standards deliver a level playing field for open source and proprietary software solution providers?

We have serious concerns about the adoption of 'FRAND' as a model for the Government's commitment to open standards, and for dealing with those who have patents or copyright in some components of the software in question.

First, there is no strict legal definition of FRAND. The owner of a patent can set the terms. Companies may attach conditions that still have the effect of disadvantaging rivals. It could chill development and restrict the market, for example where it creates uncertainty, and further can rule out some free software providers where there is a royalty requirement.

'FRAND' gives patent owners too much power to determine the evolution and use of the standard. It can be a way for existing market dominant players to retain leverage in the provision of services. We tend to agree with the position taken by Simon Phipps in an article on ComputerWorld:

“RAND policy allows patent holders to decide whether they want to discourage the use of open source. Leaving that capability in the hands of some (usually well-resourced) suppliers seems unwise.”i

We agree with the Open Source Consortium that royalty and restriction free open standards “do not create a secondary requirement to use specific software, but allow the use of any software including open source software”.ii

Open standards that are not bound by these requirements, and which don't make development and use dependent on third parties in this way - specifically, for example, 'royalty-free' standards – should be the model the government adopts.

Question 10. Does a promise of non-assertion of a patent when used in open source software alleviate concerns relating to patents and royalty charging?

One concern is that we regularly see patents sold between companies and, whilst the earlier owner may be happy to make that promise, no such assertion is guaranteed from the purchaser, indeed the fact they have purchased the patent could suggest they mean to enforce it.

Similarly, depending on the nature of the terms, the promise may not apply to code developed for a standard being applied for other uses, for example an updated or derived standard not supported by the patent holder.

Chapter 2: Open standards mandation

1. What criteria should the Government consider when deciding whether it is appropriate to mandate particular standards?

The short answer is: openness!

We believe that there must be a real commitment to open standards save for situations in which there are clear, demonstrable economic reasons not to.

However, there may be occasions, for example, in which there are no such standards. For example, there may be situations in which there is a de facto standard and little market or support for alternatives at the time.

In such cases we can understand the benefit of a short term pragmatic hierarchy approach, with preferences on a sliding scale from unencumbered, RF standards through less strictly 'open', as defined above, options. It need not be the case that the absence of a standard, which would sit at the top of such a hierarchy, should delay or inhibit the government.

However, this requires a long term strategy of committing to fully open standards, explicit definition of the conditions under which non fully open options may be considered, and a plan to address those issues.

To that end, we consider the following paragraph to be somewhat lacking in force and clarity:

Government bodies must consider open standards for software interoperability, data and document formats and in procurement specifications should require solutions that comply with open standards, unless there are clear, documented business reasons why this is inappropriate.

The statement is qualified with the words “consider” and “unless...inappropriate”. That creates a level of uncertainty about the conditions under which open standards must be used – both the rationale behind the 'consideration' and the business reasons that may render open standards inappropriate.

First, we would suggest first that the statement would be improved by replacing “consider” with “use”, to read “Government bodies must use open standards....”.

This should help ensure that the policy is a requirement for use of open standards, except in certain exceptional circumstances meeting strict criteria. Currently the definition risks being to give consideration to open standards.

Second, the nature of the 'business reasons' needs to be clarified. Any apparent costs to the bodies involved or the public of failing to embrace open standards need to be clearly set out against the benefits of choosing open.

It could be argued that a commitment to open standards will lead to some transitional costs. However, it may be that costs associated with adoption of open standards are costs of lock-in to de facto standards. In which case the longer term benefits of open standards, and a move away from such a problem, need to be taken into account.

Furthermore, we point to coverage of leaked emails suggesting Microsoft have argued the costs to the UK Government of adherence to fully open standards, rather than a mixed market, may be in the region of £500miii - £516.42m to be precise. It is unclear, having looked at the research from which this figure may have originated, where this figure originates from or the justification for it.

Any alleged costs of a commitment to open standards need to be properly cited, justified and examined, and need to be seen in the context of a broader analysis of costs and benefits.

Third, we would suggest that the term 'Government bodies' is also vague, and may not apply to the full range of institutions or bodies carrying out public functions and who should be considered bound by this policy. We would suggest that the Equality Act serve as a guide, which extends the applicability of its provisions to “private bodies exercising public functions”.iv

Procurement as driver

Relatedly, the Equality Act also notes the role that procurement can have as a driver for change. v We would highlight the need to recognise this in the context of open standards. The government should use procurement, through strict open standard requirements, as a catalyst for change.

Lead time for public sector procurement mean that a strong government policy on requirements for open standards will give a clear and catalytic market signal.

Chapter 3: International alignment

2. Will the open standards policy be beneficial or detrimental for innovation and competition in the UK and Europe?

The principle behind this commitment is that it will ensure government is supporting the market, rather than businesses in it.

A commitment from the Government to open standards would on this conception boost the technology market, shifting procurement from a reliance on de facto standards to true choice and competitiveness. It will mean that the government can choose from a broader range of providers and won't suffer from 'lock in' with legacy providers.

i http://blogs.computerworlduk.com/simon-says/2012/04/open-standards-consultation-guide/index.htm

Open Rights Group exists to preserve and promote your rights in the digital age. We are funded by thousands of people like you. We are based in London, United Kingdom. Open Rights is a non-profit company limited by Guarantee, registered in England and Wales no. 05581537.